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Keith v. Schulman6/19/1998
Miscellaneous Reports
SUPREME COURT KINGS COUNTY
DECISION AND ORDER
Plaintiff, Pluma D. Keith, suffered an injury to the left eye as a result of being mugged. On March 4, 1993, he sought treatment from an ophthalmologist, Dr. Elaine Schulman, of the Central Medical Group, P.C. (CMG). Dr. Schulman operated on plaintiff's eye on March 26, 1993. After this surgery it was apparent that plaintiff was blind in his left eye. In an attempt to treat the blindness, Dr. Schulman operated again upon plaintiff. The operation failed, however, to restore plaintiff's vision.
Plaintiff continued under the care of Dr. Schulman and CMG. His last actual visit with Dr. Schulman was on August 23, 1993. Thereafter, plaintiff saw other doctors at the group. Such visits related to eye care but were not for the purpose of treating the blindness of plaintiff's left eye. While Dr. Schulman did not see plaintiff after August 23, 1993, it is uncontroverted that at such time she sent him for a consultation to Dr. Kupersmith, a neuro-ophthalmologist at the N.Y.U. Medical Center.
After an unexplained cancellation in September, the consultation took place on November 23, 1993. Dr. Schulman, at her examination before trial, explained that she sent plaintiff for the consultation in order "to leave no stone unturned in investigation of why this visual loss occurred." The referral slip from Dr. Schulman to Dr. Kupersmith stated that he was not to bill plaintiff directly, that he had to obtain authorizations from CMG before performing any services other than the consultation, and that he had to report his findings to the referring medical group, that is CMG.
In fact, after the consultation Dr. Kupersmith sent a report dated November 25, 1993, to Dr. Schulman. While the testimony varies, Dr. Schulman did at one point in her deposition concede that she spoke to Dr. Kupersmith about his evaluation of plaintiff and that she reviewed the report of November 25. The records of CMG including a November 25, 1993 file entry, are consistent with such testimony.
Plaintiff, commenced this action on March 26, 1996 against defendants alleging that Dr. Schulman was negligent in performing the surgery and failing to recognize damage to his optic nerve. Subsequently, by order of a different Judge dated September 8, 1997, plaintiff was granted leave to serve an amended complaint asserting a derivative claim on behalf of his wife. Defendants in their answer to both the original and amended complaints asserted a statute of limitations defense.
Defendants now move for an order pursuant to CPLR 3211 (a)(5) dismissing this action as time barred. While defendants concede that they treated plaintiff's left eye until August 23, 1993, they contend that the 2 1/2 year statute of limitations provided by CPLR 214-a expired on January 23, 1996 - a date before this action was commenced. Plaintiff, relying on the continuous treatment doctrine, asserts that the statute of limitations did not expire before commencement of the action. Plaintiff claims that treatment continued through at least November 23, 1993, the date on which he saw Dr. Kupersmith via the referral of Dr. Schulman.
A medical malpractice action must be commenced within 2 1/2 years from the date "of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to said act, omission or failure" (CPLR 214-a). Thus under the continuous treatment doctrine "the time in which to bring a malpractice claim is stayed 'when the course of treatment which includes the wrongful acts or omissions has run continuously and i
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